ML040430496

E-mail from Administrative Judge Young to David A. Repka Discussing Security Issues at Upcoming Oral Argument on 02-13-04

ML040430496
Person / Time
Site:	Catawba
Issue date:	02/11/2004
From:	Austin Young Atomic Safety and Licensing Board Panel
To:	Repka D Winston & Strawn, LLP
Byrdsong A T
References
-RFPFR, 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7352
Download: ML040430496 (6)

Text

DOCKETED USNRC February 11, 2004 (2:19PM)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Nos. 50-413/414-OLA RAS 7352 From: Ann Young To: Repka, David Date: Wed, Feb 11, 2004 1:26 PM

Subject:

Re: RE Docket Nos. 50-413-OLA; 50-414-OLA: information regarding 2/13/04 oral argument The Licensing Boards plan is to allow all who are cleared for access to Safeguards Information to be present in the argument Friday, and to try to stay away from discussing any Classified Information in any manner that would disclose it in any way during the session. However, since the primary subject of the discussion is BREDLs "need to know" with regard to the Classified Information, we are treating the session as potentially involving Classified Information, in the interests of preserving the security of the information, and to err on the side of caution in this regard.

We have therefore arranged for a court reporter who is cleared for Classified Information, and are also asking Barry Manili, the security expert the Commission has assigned to assist the Board with regard to security and classification issues, to be on the alert for any possibility of inadvertent disclosure, so as to prevent this from occurring. I expect that Staff security experts will also be on the alert for this.

Because, however, we will necessarily be talking to some degree "about" Classified Information, we are concerned about the possibility of discussion arising that might by its very nature move into the area of potentially and/or indirectly disclosing Classified Information. If for any reason this does occur, and if for any reason we determine that there is a need to address the issues before us in some manner that might potentially involve some indirect discussion of the material in question such that additional precautions are in order, at that point we might find it appropriate (in consultation with our security expert and after hearing from all present) to require those who do not have clearance for Classified Information to leave the room. By saying this, of course, I am not in any way suggesting that this would or should occur, but merely anticipating all possible scenarios so that we can be as alert as we can to such possibilities. Your points are well-taken with regard to appeal of any ruling Judge Elleman and I might make on BREDLs "need to know" with regard to the Classified Information, so again, we will approach all these sorts of issues in a manner that is cautious and alert to the need to protect the security of the information.

We do understand that Mr. Nesbit is not an attorney and is not representing Duke in such capacity. If, however, the eventuality described in the previous paragraph occurs, we would

permit him to stay in the room assuming proper clearance is shown, so that Duke would not be completely absent from any discussion that might follow.

I will forward my other earlier email to SECY, as requested by Mr. Repka. If any other concerns arise that need to be brought out before we meet on Friday, for example, in the nature of notice of issues to be discussed on Friday, if there is not time for a formal filing these could also be raised through email, which should likewise be copied to SECY. We would like insofar as possible to get all pending and potential security-related issues in this proceeding "on the table" on Friday, so that we can address them in the most efficient manner that would allow all participants to speak to them while we are all together.

In any event, we look forward to seeing all participants on Friday.

Administrative Judge Young

>>> "Repka, David" <DRepka@winston.com> 02/11/04 11:47AM >>>

Judge Young:

The individuals that will attend the Friday, February 13, 2004 oral argument on behalf of Duke Energy are: Mr. Repka, Mr. Wetterhahn, Ms. Cottingham, Ms. Vaughn, Mr. Cash, and Mr.

Nesbit. A document providing the information that you requested for these individuals will be provided in an immediate follow-up e-mail to a more limited distribution list.

In response to your e-mail, Mr. Nesbit is presently the only representative of Duke Energy with clearance for access to Classified National Security Information (NSI) (i.e., classified at a level beyond Safeguards information). His L clearance was issued by the Department of Energy through DOEs Chicago Operations Office. To allow the NRC to verify, Mr. Nesbits social security number will be included in the follow-up e-mail.

However, to be clear, Mr. Nesbit is not an attorney and is not appearing at the argument to represent the company in a legal capacity. It is Duke Energys expectation that -- while BREDLs access to Classified NSI is the subject of the argument -- specific Classified information cannot (and need not) be discussed during that argument. The subject of the argument is a "need to know" determination, and Classified information cannot be disclosed, released, or discussed until after an affirmative "need to know" determination has been made with respect to that information. Thus, no Classified information can be discussed in the argument as part of the process of making a "need to know" determination.

Moreover, any "need to know" determination with respect to Classified NSI is subject to certification or appeal under 10 C.F.R. 2.905(d). Therefore, to preserve the process the Classified information cannot be disclosed at this juncture even to those with the requisite clearance (a prerequisite to access independent of the requirement for "need to know").

Indeed, in its filing of January 20, 2004, Duke Energy has already requested that the Licensing Board certify to the Commission any decision to find a "need to know" with respect to Classified information (see page 14). Accordingly, we anticipate that the discussion on Friday would involve no more or less than the Safeguards information in Dukes security submittal of September 15, 2003.

We will, of course, be prepared to discuss any related issues that the Licensing Board wishes to consider, including potential impacts in this proceeding of any Commissions decision on the Staffs two pending appeals.

Please also note that -- given the nature of the discussion above -- we have included the Office of Secretary on distribution for this e-mail. (We will not send the follow-up e-mail with personal information to the Secretary.) In order to preserve the record in this matter, we believe that it would also be prudent to send the Licensing Boards earlier e-mails to the Secretary. The message to which this e-mail replies is already duplicated below.

David A. Repka Winston & Strawn LLP 202-371-5726

---

Original Message-----

From: Ann Young [1]

Sent: Tuesday, February 10, 2004 12:52 PM To: lfvaughn@duke-energy.com; dcurran@harmoncurran.com; Antonio Fernandez; James Cutchin; Kathleen Kannler; Susan Uttal; Cottingham, Anne; Repka, David Cc: Anthony Baratta; Cynthia Harbaugh; Michael Bodin; Robert Manili

Subject:

information regarding 2/13/04 oral argument Would all participants please, no later than tomorrow, February 11, reply to this email, with copies to Mack Cutchin, at JMC3@nrc.gov; Michael Bodin, at MWB1@nrc.gov; R. Barry Manili, at RBM1@nrc.gov; and Cynthia Harbaugh, at CGH1@nrc.gov; providing the following information:

- a list of all persons who will be attending the Friday oral argument; and, for each:

- the organization with which the person is associated;

- his or her birth date; and

- whether each is a US citizen.

We anticipate that we will begin the session with discussion of matters relating only to up-to-Safeguards-level information, and then, after a short break, move into discussion of issues relating to Classified information up to the "L" level. Please provide the above-listed information for any and all persons you intend to bring to either part of the session, designating which part or parts of the session each will attend, pursuant to what level clearance.

As of now, I am assuming that the following persons will be attending:

Susan Uttal (for NRC Staff)

Antonio Fernandez (for NRC Staff)

Diane Curran (for BREDL)

Edwin Lyman (for BREDL)

Stephen Nesbit (for Duke)

David Repka (for Duke, only during the Safeguards part of the session)

Mr. Bodin will, from the information you provide, give my office a list of those persons who are cleared to have access to Safeguards Information, as well as a separate list of those cleared for access to Classified Information at the "L" clearance level. On Friday, someone from my office will be checking all attendees against the lists of those with appropriate clearance levels.

As indicated above, at the beginning of the session we will address certain matters involving only up-to-Safeguards-level information. Then, before starting to address any Classified information, all those not cleared for access to that will have to leave the room. For each part of the session, we will query counsel for each participant regarding the specific "need to know" on the part of each person who will attend the respective parts of the session.

Prior to the session, all persons should gather in the lobby area next to the entrance to Two White Flint (to your left after you enter Two White Flint), and someone from my office will escort everyone to the location of the session in a group. No one will be permitted to attend the respective parts of the session without the appropriate level of clearance.

Thank you for your attention to these matters.

Administrative Judge Ann Marshall Young Chair, Atomic Safety and Licensing Board The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege.

Please do not disseminate this message without the permission of the author.

CC: Anthony Baratta; Antonio Fernandez; Cottingham, Anne; Cynthia Harbaugh; dcurran@harmoncurran.com; elleman@eos.ncsu.edu; HearingDocket; James Cutchin; Kathleen Kannler; lfvaughn@duke-energy.com; Michael Bodin; Robert Manili; Susan Uttal Mail Envelope Properties (402A73DD.EBD : 6 : 37434)

Subject:

Re: RE Docket Nos. 50-413-OLA; 50-414-OLA: information regarding 2/13/04 oral argument Creation Date: Wed, Feb 11, 2004 1:26 PM From: Ann Young Created By: AMY@nrc.gov Recipients duke-energy.com lfvaughn CC (lfvaughn@duke-energy.com)

eos.ncsu.edu elleman CC (elleman@eos.ncsu.edu) harmoncurran.com dcurran CC (dcurran@harmoncurran.com) nrc.gov owf4_po.OWFN_DO RBM1 CC (Robert Manili) nrc.gov owf5_po.OWFN_DO AXF2 CC (Antonio Fernandez)

HearingDocket CC (HearingDocket)

KAK1 CC (Kathleen Kannler)

SLU CC (Susan Uttal) nrc.gov twf2_po.TWFN_DO AJB5 CC (Anthony Baratta) nrc.gov twf3_po.TWFN_DO JMC3 CC (James Cutchin)

MWB1 CC (Michael Bodin) nrc.gov twf4_po.TWFN_DO CGH1 CC (Cynthia Harbaugh) winston.com ACottingham CC (Cottingham, Anne)

DRepka (Repka, David)

Post Office Route duke-energy.com eos.ncsu.edu harmoncurran.com owf4_po.OWFN_DO nrc.gov owf5_po.OWFN_DO nrc.gov twf2_po.TWFN_DO nrc.gov twf3_po.TWFN_DO nrc.gov twf4_po.TWFN_DO nrc.gov winston.com Files Size Date & Time

MESSAGE 13664 Wednesday, February 11, 2004 1:26 PM Options Expiration Date: None Priority: Standard Reply Requested: No Return Notification: None Concealed

Subject:

No Security: Standard